929 F.

2d 42

32 Fed. R. Evid. Serv. 1093, Prod.Liab.Rep.(CCH)P 12,784

Gail F. LUBANSKI, etc., et al., Plaintiffs, Appellants,
v.
COLECO INDUSTRIES, INC., Defendant, Appellee.
No. 90-1703.

United States Court of Appeals,

First Circuit.
Heard Feb. 7, 1991.
Decided April 3, 1991.

Janis M. Berry, with whom Marc J. Bloostein and Ropes & Gray, Boston,
Mass., were on brief, for plaintiffs, appellants.
Paul R. Keane, with whom Douglas A. Robertson and Martin, Magnuson,
McCarthy & Kenney, Boston, Mass., were on brief, for defendant,
appellee.
Before TORRUELLA, SELYA and CYR, Circuit Judges.
TORRUELLA, Circuit Judge.

This appeal arises out of a products liability action1 instituted against Coleco
Industries by Gail F. Lubanski as administratrix for the estate of her son James
S. ("Jimmy") Lubanski2 alleging breach of warranty 3 in the design,
manufacture and sale of a child's three-wheeled riding apparatus marketed
under the trade name "Power Cycle."4 Plaintiff's complaint alleged that the
Power Cycle was defective and unreasonably dangerous as a result of the low
profile of its design, the noise it made while in motion, the lack of a braking
mechanism, and Coleco's inadequate warnings regarding improper use of the
product. The district court rendered a directed verdict for Coleco on the braking
mechanism issue and the issue of noise, and the jury returned a verdict in favor
of Coleco on the remaining issues. We are in agreement with the district court's
resolution of this case.

FACTS

At approximately 5:00 p.m. on the afternoon of September 22, 1985, Jimmy

Lubanski was riding a Coleco Power Cycle in front of his house on
Cunningham Street in Wilmington, Massachusetts, when he was struck and
killed by a 1974 Ford Grand Torino Elite driven by James Litwinsky. Although
two neighbors were talking in a nearby driveway, there were no eyewitnesses to
the actual collision. Litwinsky maintained that he never saw Jimmy and that he
only became aware of Jimmy's presence when he heard a thud upon impact.
Police believed these statements, and no criminal charges were filed against
Litwinsky.

The accident was investigated by the Wilmington Police Department and the
Massachusetts State Police. State Trooper Steven Benanti testified at trial that
based upon his observations of the physical evidence, impact occurred at a
point on Cunningham Street immediately adjacent to a sand-covered portion of
the roadway. In addition, he determined that Jimmy's Power Cycle was hit on
its left side by the right front bumper of Litwinsky's car. Trooper Benanti
calculated the speed of the automobile to have been between 23 and 25 miles
per hour, well within the 30 m.p.h. speed limit for Cunningham Street. He
further stated that he believed there was no way to determine how fast Jimmy
might have been pedalling the Power Cycle; however, he did offer a conclusion
as to the general direction in which the Power Cycle was moving just prior to
impact. It was Trooper Benanti's opinion that the Power Cycle had been
moving down the slope of the driveway leading from Jimmy's house.

Plaintiff's accident reconstructionist, Dr. David Pesuit, provided additional

testimony on the issue of movement and direction. In Dr. Pesuit's opinion,
Jimmy had been executing a U-turn at the end of the driveway when he was
struck and killed.

Plaintiff's principal contentions at trial were (1) that the low profile of the
Power Cycle made it unsuitable for outdoor use without a flag, or pennant, to
enhance its visibility and (2) that the noisemaker attached to the front wheel of
the Power Cycle made operation of the toy unsafe as it masked the sound of
oncoming motor vehicles.

In response to plaintiff's first contention, Coleco offered the testimony of

accident reconstructionist Jeffrey L. West. West concluded that, despite police
findings to the contrary, given conditions as they existed on September 22,
Jimmy's Power Cycle should have been clearly visible to an operator of a motor
vehicle such as Litwinsky's. He further contended that had Litwinsky seen the
child, enough time would have existed thereafter for an attentive operator to
avoid collision. Plaintiff's second contention was resolved by directed verdict.

On appeal, plaintiff challenges the district court's exclusion of several pieces of

evidence, specifically State Trooper Benanti's written report, certain expert
testimony by Dr. Pesuit, and plaintiff's rebuttal evidence. In addition, plaintiff
challenges the admissibility of Coleco's photographic enlargements. Plaintiff
also alleges that a directed verdict with regard to the issue of noise was
improper. We consider each of plaintiff's assertions in turn.

STATE TROOPER'S REPORT

8

Plaintiff's witness State Trooper Benanti was not identified as an expert prior to
trial. The district court therefore ruled that Benanti would not be allowed to
give expert, as opposed to lay, testimony. In lieu of prohibited opinion
testimony, plaintiff sought to admit into evidence Trooper Benanti's written
accident report, specifically that portion of the report containing Benanti's
conclusions. The district court refused to grant admission. Plaintiff maintains
that the report should have been admitted under Federal Rule of Evidence
803(8)(C) as a report of a public office or agency setting forth "factual findings
resulting from an investigation made pursuant to authority granted by law" and
that it was improperly excluded because Coleco failed to show that the report
was untrustworthy.5 Coleco, on the other hand, contends that Benanti's report
was not only excludable under Rule 803(8)(C) for lack of trustworthiness-hearsay of a biased witness (Litwinsky)--but was also excludable under Federal
Rule of Evidence 403 because it was confusing, misleading and cumulative.
The record, however, discloses that the district court made neither of these
findings. The district judge's ruling clearly indicates that her decision rested
solely upon a determination that admissibility of the report went beyond the
purview of Rule 803(8)(C).

We recognize that district courts have broad discretion regarding the

admissibility of evidence and should only be reversed upon a showing of abuse
of discretion. Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st
Cir.1987). Keeping in mind the rigors of this standard, we nevertheless resolve
that the district court's reasoning constituted error.

10

Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445
(1988), settled a long-standing conflict among the circuits regarding the
admissibility, under Federal Rule of Evidence 803(8)(C), of accident reports
containing investigators' conclusions and opinions.6 The Court held that
"statements in the form of opinions or conclusions are not by that fact excluded
from the scope of Federal Rule of Evidence 803(8)(C)." Id. at 175, 109 S.Ct. at
453. The test for admissibility is two-fold: "As long as the conclusion is based
on a factual investigation and satisfies the Rule's trustworthiness requirement, it

should be admissible along with other portions of the report." Id. at 170, 109
S.Ct. at 450. Other rules, such as Rule 403, provide additional evidentiary
safeguards against irrelevant or prejudicial information. Id. at 168, 109 S.Ct. at
449.
11

In Puerto Rico Ports Authority v. M/V Manhattan Prince, 897 F.2d 1 (1st
Cir.1990), this court indicated its willingness to interpret Rainey broadly. Id. at
8 (refusing to find inadmissible under Rainey conclusory statements attributing
a nautical accident to the use of improper speed by the pilot, the failure of the
master to take command and control, and the action of the tug in dropping its
lines). A broad interpretation appears to be the prevailing opinion among the
other circuits as well. See Farmers & Merchants Nat'l Bank v. Bryan, 902 F.2d
1520, 1523-24 (10th Cir.1990); United States v. Romo, 914 F.2d 889, 896 (7th
Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1078, 112 L.Ed.2d 1183 (1991);
Glados, Inc. v. Reliance Ins. Co., 888 F.2d 1309, 1312 (11th Cir.1987), cert.
denied, --- U.S. ----, 110 S.Ct. 3273, 111 L.Ed.2d 783 (1990).

12

Based upon this inquiry, we conclude that Trooper Benanti's report was at least
deserving of an initial presumption of admissibility. The majority of his report
documented factual findings surrounding his investigation of the accident
scene, while his opinion comprised only one short paragraph of a three page
report. Moreover, the conclusory statements, "James Litwinsky ... did not
observe [Jimmy] prior to the collision. [Jimmy], on his big wheels [came] down
the driveway ... out into the road where contact was made," are of the nature
contemplated by the Court in Rainey. Rainey, 488 U.S. at 158, 109 S.Ct. at 444
(the disputed statement read: "The most probable cause of the accident was the
pilots [sic] failure to maintain proper interval"). Thus it was error for the
district court to exclude the report pro forma, O'Dell v. Hercules, Inc., 904 F.2d
1194, 1204 (8th Cir.1990) (once a report is "shown to be governed by Rule
803(8)(C) ... the essential inquiry becomes whether the report is trustworthy");
however, this does not necessarily mean that the district court erred in
excluding the report. If there is another ground upon which to exclude the
evidence, we need not reverse, even if the trial court did not cite the proper
justification. See, e.g., United States v. Nivica, 887 F.2d 1110, 1127 (1st
Cir.1989) ("If the trier incorrectly admits evidence under a hearsay exception,
we will not reverse so long as the material was properly admissible for the same
purpose under a different rule of evidence."). In the instant case, it seems that
exclusion may have been appropriate either because the report was
untrustworthy or because the report was confusing, misleading or cumulative
within the purview of Federal Rule of Evidence 403. We need not, however,
resolve that issue because we reach the same result whether the report was
properly or improperly excluded. If the report was excludable on either ground

set forth above, there would be no occasion to reverse. And if the report was
admissible, as plaintiff maintains, any error in excluding it was rendered
harmless by oral testimony.
13

In determining whether error is harmless, "[o]ur inquiry is whether [exclusion]

of the evidence affected plaintiff['s] substantial rights." Vincent v. Louis Marx
& Co., Inc., 874 F.2d 36, 41 (1st Cir.1989); see also 28 U.S.C. Sec. 2111;
Fed.R.Evid. 103(a). The central question is whether this court "can say 'with
fair assurance ... that the judgment was not substantially swayed by the error.' "
Lataille v. Ponte, 754 F.2d 33, 37 (1st Cir.1985) (quoting United States v.
Pisari, 636 F.2d 855, 859 (1st Cir.1981) (quoting Kotteakos v. United States,
328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946))). The centrality
of the evidence sought to be admitted and the prejudicial effect of its exclusion
are two important factors to consider, id.; however, the "determination must be
made in the context of the case as gleaned from the record as a whole."
Vincent, 874 F.2d at 41 (quoting De Vasto v. Faherty, 658 F.2d 859, 863 (1st
Cir.1981)).

14

Trooper Benanti's report touched both the issue of visibility and the issue of
noise, clearly central to plaintiff's case, but upon review of the record we do not
see that plaintiff suffered any prejudice as a result of its exclusion. During oral
examination, Trooper Benanti testified to substantially the same information
contained in his written report, including his conclusory statements. When
asked "[What] was the general direction of the path of travel of the Power
Cycle," Benanti responded "Down the driveway." In addition, Benanti referred
to Litwinsky's statement that he (Litwinsky) looked through his rear view
mirror after impact and only then, when he observed the boy, did he stop his
vehicle. Although not phrased in precisely the same language as the written
report, this statement clearly apprised the jury that Litwinsky claimed not to
have seen the boy before impact. The fact that the evidence was presented in
testimonial rather than written form cannot be said to have prejudiced plaintiff's
case. Provided "all the facts upon which the investigator's conclusion[s] [were]
based were brought out in his testimony, the mere fact that he did not say
directly" what was contained in his written report does "not substantially detract
from his testimony" and therefore does not rise to the level of harmful error.
Glados, 888 F.2d at 1313.DR. PESUIT'S TESTIMONY

15

Pre-trial, plaintiff anticipated calling Dr. Pesuit as an expert on the issue of

noise. Dr. Pesuit was listed on plaintiff's pre-trial witness list and remained on
that list during the first two days of trial. On the third day of trial, in an effort to
consolidate the case and conserve judicial time, plaintiff decided not to call
him. At that time plaintiff intended to rely solely on the testimony of a second

expert witness, Paul Pritzker. Plaintiff, however, felt that Pritzker's testimony
was incomplete and therefore sought to reinstate Dr. Pesuit as a witness. The
district court reluctantly allowed Dr. Pesuit to testify, but limited his testimony
to the manner in which the accident occurred, including the direction and
location from which the Power Cycle was coming and how the Power Cycle
was hit. Plaintiff maintains that the court incorrectly excluded an acoustical
analysis chart prepared by the witness. Upon review of the record, we find that
was not the case.
16

During Pritzger's testimony, on the fourth day of trial, plaintiff asked the court
to reinstate Dr. Pesuit as a witness. At that time plaintiff indicated that Dr.
Pesuit would be relying upon an acoustical chart. When Coleco objected,
plaintiff's counsel clearly stated: "I won't use the chart, your Honor." Record at
4-8. No later attempt was made to introduce the acoustical chart when Dr.
Pesuit was called to the stand. Thus the decision to exclude the evidence was
clearly that of plaintiff, not the court. We therefore find no reason to discuss the
issue further.

REBUTTAL EVIDENCE
17

At the close of Coleco's defense, plaintiff sought to introduce two pieces of

rebuttal evidence: (1) measurements to prove that two neighbors who were
talking in a driveway on Cunningham Street at the time of the accident, and
who claimed not to have heard Jimmy's Power Cycle just prior to impact, were
standing too far from the Lubanski driveway to have heard any noise made by
the Power Cycle, and (2) a video tape depicting an automobile driver's line of
vision while motoring along Cunningham Street. The district court refused to
allow the evidence. Plaintiff claims that this constituted error because the
purpose of the evidence was to counter the testimony of Coleco's expert
witness, Jeffrey L. West. We disagree.

18

"Rebuttal is a term of art, denoting evidence introduced by a plaintiff to meet

new facts brought out in [the] opponent's case in chief." Morgan v. Commercial
Union Assurance Cos., 606 F.2d 554, 555 (5th Cir.1979) (emphasis omitted).
"The determination of what constitutes proper rebuttal evidence [lies] within
the sound discretion of the [district court]." Hickok v. G.D. Searle & Co., 496
F.2d 444, 447 (10th Cir.1974).

19

Turning to the case at hand, both pieces of rebuttal evidence were available to
plaintiff during her case in chief. Moreover, the testimony she sought to rebut
was not unexpected. In light of these circumstances, we hold that the district
court acted well within its discretion by refusing to allow the evidence. See

generally Rodriguez v. Olin Corp., 780 F.2d 491, 494-96 (5th Cir.1986).
PHOTOGRAPHIC ENLARGEMENTS
20

Coleco's accident reconstructionist, Jeffrey L. West, submitted into evidence a

series of photographic enlargements portraying a staged version of the accident
scene on Cunningham Street. Plaintiff was aware that Coleco intended to use
the photographs in their original size; however, production of the enlargements
was unexpected. Plaintiff objected vehemently to the admissibility of the
enlargements, claiming that they depicted a distorted view and thus were
grossly prejudicial. The district court allowed the enlargements over plaintiff's
objection. Plaintiff now asserts that the district court committed error. We do
not agree.

21

Again we note that determinations regarding the admissibility of evidence lie

within the sound discretion of the district court. Conway, 825 F.2d at 597. That
discretion extends to the admissibility of photographs. Dabney v. Montgomery
Ward & Co., Inc., 761 F.2d 494, 500 (8th Cir.), cert. denied, 474 U.S. 904, 106
S.Ct. 233, 88 L.Ed.2d 232 (1985). A staged photograph is admissible if the
court makes a preliminary determination that the photograph depicts a correct
likeness of the scene it purports to represent. Georgia S. & Fla. Ry. Co. v.
Perry, 326 F.2d 921, 924 (5th Cir.1964). Once the court has so determined,
differences between the actual scene and the photograph go to the weight of the
evidence rather than its admissibility. Reed v. Tiffin Motor Homes, Inc., 697
F.2d 1192, 1199 (4th Cir.1982).

22

In this case, plaintiff was aware before trial that Coleco intended to use
photographs. Plaintiff, however, did not object to those photographs in their
original five-inch by seven-inch form. The district court was aware of plaintiff's
earlier failure to object when making its preliminary determination with respect
to the admissibility of enlargements. We find that fact alone persuasive in
concluding that no error occurred below.

23

Moreover, we recognize that West was thoroughly cross-examined regarding

any discrepancies between the actual scene and his staged version. Thus even if
we were to find that error was committed below, such error was rendered
harmless because plaintiff suffered no prejudice. See Lataille, 754 F.2d at 37.

DIRECTED VERDICT

24

In reviewing a district court's grant of directed verdict, this court "examine[s]

the evidence and [all] inferences reasonably extractable therefrom in the light

most hospitable to the nonmovant." Fashion House, Inc. v. K Mart Corp., 892
F.2d 1076, 1088 (1st Cir.1989). We do so without considering the credibility of
the witnesses, resolving conflicts in testimony, or evaluating the weight of the
evidence. "To affirm withdrawal of [a] claim from the jury, we must find,"
viewed from this perspective, "that ... the evidence ... permit[s] thoughtful
factfinders to reach but one reasoned conclusion." Id.
25

In a products liability case subject to Massachusetts law,7 the burden rests with
the plaintiff to prove, by a preponderance of the evidence, that the injury
resulted from the defendant's negligence or breach of warranty. Hayes v. Ariens
Co., 391 Mass. 407, 462 N.E.2d 273, 278 (1984). The order of proof is as
follows: The plaintiff must initially prove that the product is both defective and
unreasonably dangerous. The plaintiff then bears the burden of establishing that
the existence of said defect was the proximate cause of the injury. Barry v. Stop
& Shop. Cos., 24 Mass.App.Ct. 224, 507 N.E.2d 1062, 1063-64, rev. denied,
400 Mass. 1103, 511 N.E.2d 620 (1987).

26

Plaintiff in this case maintains that sufficient evidence was presented in order to
forestall a directed verdict. Plaintiff first refers to noise testing performed by
expert safety engineer Paul Pritzker, demonstrating that a moving Coleco
Power Cycle is louder than a moving automobile, as support for the proposition
that a reasonable jury could have found that the noise made by Jimmy's Power
Cycle constituted an unreasonably dangerous defect. Plaintiff then points to
testimony establishing that Jimmy's Power Cycle was in motion, together with
the fact that the Power Cycle's noisemaker was intact, as evidence from which
a reasonable jury could have concluded that Jimmy's Power Cycle was making
excessive noise at the time of the accident. From these two conclusions,
plaintiff maintains that a reasonable jury could easily have reached the ultimate
conclusion that the noise of the Power Cycle prevented Jimmy from hearing
Litwinsky's oncoming motor vehicle and consequently prevented Jimmy from
avoiding the fateful accident. Plaintiff's proof, however, fails in several
respects.

27

Based upon the evidence presented at trial, we accept the fact that Jimmy's
Power Cycle was probably in motion just prior to the collision. We further
acknowledge that the noisemaker was in place at the time of trial. Since Coleco
made no allegations of tampering, we are willing to accept that the noisemaker
was also in place on the date of collision. Movement and the presence of a
noisemaker, however, do not prove, even by a preponderance of the evidence
standard, that the Coleco Power Cycle, when ridden by a small child under the
conditions presented herein, creates excessive noise amounting to an
unreasonably dangerous defect or that the noise created was responsible for

Jimmy's accident.
28

First, plaintiff's evidence failed to demonstrate the speed at which the Power
Cycle was travelling. Since the Power Cycle's noisemaker is activated by the
rotation of its large front wheel, evidence of speed was crucial in order to
determine the noise generated at the time of the accident. Second, plaintiff's
noise expert calculated the decibel level generated by a power cycle when
operated along a sidewalk. The area of roadway adjacent to the point of impact,
however, was covered with sand. Plaintiff's expert evidence failed to
demonstrate the decibel level of a Power Cycle when driven through sand.8
Also, there was evidence that the Power Cycle was executing a U-turn at the
time of collision. Plaintiff's expert evidence similarly failed to demonstrate the
decibel level of a Power Cycle while being turned.

29

As our discussion indicates, plaintiff in this case did not lay a sufficient
foundation for the conclusions she wished the jury to reach. In reviewing the
appropriateness of directed verdicts, this court has held that the objecting
party's evidence "must comprise more than fragmentary tendrils: a mere
scintilla of evidence is not enough to forestall a directed verdict, especially on a
claim or issue as to which the burden of proof belongs to [that] party." Fashion
House, 892 F.2d at 1088. Similarly, Massachusetts courts have held that
speculation and conjecture are insufficient to meet the plaintiff's burden of
proof on a products liability claim. Goffredo v. Mercedes-Benz Truck Co., 402
Mass. 97, 520 N.E.2d 1315, 1318 (1988); Swartz v. General Motors Corp., 375
Mass. 628, 378 N.E.2d 61, 65 (1978). The district court therefore did not err in
granting a directed verdict on the issue of noise defect.

CONCLUSION
30

For the preceding reasons, we affirm.

Jurisdiction was based on diversity of citizenship

Gail F. Lubanski also sued in her individual capacity as well as in the capacity
of executrix for the estate of Stanley Lubanski, Jr., and as parent and next
friend for her daughter Kristen Lubanski. We shall refer herein to Gail
Lubanski as the plaintiff, in the singular, encompassing by that reference all of
her capacities

Negligence was also charged in the complaint, but that count was withdrawn
prior to trial

The particular Power Cycle involved in this case was the "E.T." model;
however, Power Cycles are more commonly known as "big wheels" or "hot
wheels."

Rule 803(8)(C) allows the admission of such evidence "unless the sources of
information or other circumstances indicate lack of trustworthiness."

The Eleventh and Fifth Circuits were proponents of the "narrow view" which
interpreted the language of Rule 803(8)(C) very strictly to allow into evidence
facts only. See Smith v. Ithaca Corp., 612 F.2d 215, 221-23 (5th Cir.1980)
(relied upon by the Eleventh Circuit in Rainey ), abrogated by, 488 U.S. 153,
109 S.Ct. 439, 102 L.Ed.2d 445 (1988), on remand, 868 F.2d 1531 (5th
Cir.1989), overruling recognized, 734 F.Supp. 722 (E.D.La.1990). Most of the
remaining circuits that addressed the issue adopted a broader interpretation
encompassing opinions and conclusions. See, e.g., Baker v. Elcona Homes
Corp., 588 F.2d 551, 557-58 (6th Cir.1978), cert. denied, 441 U.S. 933, 99
S.Ct. 2054, 60 L.Ed.2d 661 (1979); Rainey, 488 U.S. at 162 n. 7, 109 S.Ct. at
446 n. 7

The parties agree, and we do not dispute, that Massachusetts law applies

We note that the district court expressly recognized both of these deficiencies
when ruling on the issue of directed verdict. We quote: "we do not know how
fast the ... tricycle was moving ... and there's no evidence ... how much noise
the [tricycle] would make if it were traveling in sand."